Terry and Ria’s Rude Awakening to Civil Forfeiture

Arizona has some of the worst forfeiture laws in the nation, earning a D- in IJ’s 2015 Policing for Profit study. Arizona law allows law enforcement to seize property often based on a showing of mere probable cause—the lowest standard of proof there is. When property owners mail in paperwork to claim their property, prosecutors can act like judges and throw out the property owner’s case without their claim ever being read in court. Exacerbating the problem, law enforcement officials can keep and spend up to 100 percent of what they forfeit. These laws set up a perverse financial incentive that encourages law enforcement to try to forfeit as much property and cash as possible and makes it incredibly difficult for innocent property owners to fight back. Victims are thrown into a maze of confusion that often leaves them without a way out.

Soon after Terry and Ria’s car was seized, they received a “Notice of Pending Forfeiture Making Uncontested Forfeiture Available” in the mail. The notice contained two pages of fine print informing them that Navajo County wanted to forfeit their car—and they had only 30 days to file a claim (with the court) or petition (with the prosecutor) if they wanted to object to the forfeiture. Terry and Ria consulted a lawyer who told them it would cost $4,000 to fight the forfeiture and the chances of winning were slim. Unable to afford a lawyer, the Platts tried to respond to the highly complex and confusing notice as best they could and mailed a handwritten response to the prosecutor in time to meet the 30-day deadline. However, their response would not get to a judge, as they thought. Instead, their response went to the prosecutor and Terry and Ria found themselves lost in Arizona’s forfeiture maze.

Using a process called “uncontested forfeiture,” prosecutors—not a judge or jury—would decide if Terry and Ria would get their car back.

The Platts never heard back from the prosecutor about their petition. Instead, the government took a shortcut and filed an “Application for Forfeiture” in Navajo County Superior Court, claiming that “no timely claim or petition . . . has been filed or submitted relating to said property.” Although the government admitted receiving the Platts’ petition in time, the prosecutors told the court that their petition was “null and void.” The application didn’t say why, and the government didn’t give the court a copy of the Platts’ petition. In essence, the prosecutors demanded the court just take the government at its word.

The government argued that—although Terry and Ria provided all the required information and signed the petition—they did not include the words “under penalty of perjury” with their signatures. This, the government said, means Terry and Ria are precluded from ever getting their car back. Notwithstanding the detailed information in the petition and an additional 29 pages of supporting documentation, including a photocopy of a two-year-old check to their auto lender and their vehicle title, the government claimed that by not including those four words, “the Platts deprived the State of any opportunity to consider the Petition.”

At no point has the government ever accused Terry and Ria of a crime. The government’s argument is purely that four missing words disqualify Terry and Ria from getting their car back. This is a trap for the unwary and unrepresented that the government has been trying to use not only to take Terry and Ria’s car from them, but also to deny them their day in court.

Arizona’s Forfeiture Maze

Arizona’s forfeiture statutes are complex, highly technical laws which even lawyers (to say nothing of ordinary people) often struggle to understand. Even though forfeiture seeks to take property from its owners, the owners are not a party to the forfeiture. Instead, to protect their rights and object to forfeiture, owners must either petition the prosecutor to reconsider the forfeiture or make themselves a party to the litigation by filing a claim. Either way, they must comply with a long list of technical requirements, including complex legal citations and mailing requirements, for their case to be considered.¹ And they have just 30 days to provide this information.

If a property owner misses the deadline, or even if the prosecutors simply don’t think the claim or petition is good enough, the property owner loses any ability to contest the forfeiture. This means that the government will be the only party to the forfeiture. Moreover, when the government is the only party to the forfeiture, the government gets an even lower burden of proof to forfeit the property; mere probable cause as opposed to a preponderance of the evidence.² As the Arizona Supreme Court has already recognized, this “virtually assur[es] forfeiture.”³

Even if a property owner can successfully make themselves a party to the forfeiture, the procedures are still stacked against them. Property owners are presumed guilty and have to prove their innocence—without the benefit of a lawyer, which the government is not required to provide because forfeiture is not considered a criminal proceeding. Essentially, the property owner will be left alone to figure out Arizona’s “broad and far-reaching” forfeiture statutes.⁴

No discussion of Arizona’s forfeiture statutes is complete without mention of the profit incentive. Law enforcement officials—both prosecutors and police—have a direct and perverse financial interest in forfeiting property. The Attorney General and various County Attorneys, for example, control the proceeds from forfeited property.⁵ By law, these prosecutors hold the proceeds for the benefit of police agencies and the prosecutors’ office.⁶ These proceeds are then used for, among other things, paying salaries and other compensation for the very people who are working on forfeiture. This means that both police and prosecutors have an obvious financial incentive to take property through forfeiture, motivating them to win at all costs rather than pursue justice impartially.

The Especially Unconstitutional Case of Uncontested Forfeiture

Magnifying all the constitutional faults of forfeiture is a peculiar system called “uncontested forfeiture,” the trap Terry and Ria unknowingly fell into: a system in which a prosecutor—who has a conflict of interest because he stands to profit from the forfeiture—also gets to act as the judge.

“Uncontested forfeiture” is really an administrative forfeiture in which there is no judge. A property owner sends a petition to the prosecutor and the prosecutor determines whether forfeiture is allowed. Here, the prosecutor unilaterally declared Terry and Ria’s petition “null and void,” at first without any argument and later based on a hyper‑technical allegation of deficiency. The prosecutor then filed an application for forfeiture, which ordinarily prohibits the property owner from objecting to the forfeiture and grants the government a lower burden of proof, virtually assuring the property owner will be permanently stripped of his property rights.⁷

The U.S. Supreme Court has long recognized that “administrative adjudicators” with a conflict of interest “should not adjudicate” disputes.⁸ After all, it violates the 14th Amendment’s due process protections to subject a person’s “liberty or property to the judgment” of a government agent who has a financial incentive to judge against the person.⁹ Due process is violated not just when the adjudicator receives the profits of the judgment directly, but also when the adjudicator’s “executive responsibilities for . . . finances may make him partisan to maintain the high level of contribution” from the adjudications.¹⁰

This is exactly what happens in “uncontested forfeiture.” The prosecutor, whose office benefits from and controls forfeiture proceeds, is given adjudicatory power to unilaterally reject objections to forfeiture. And worse yet, in Terry and Ria’s case, the prosecutor argues the courts are without power to allow property owners into the case to object.

Reverse Attorney’s Fees Discourage the Innocent from Defending Themselves

Arizona has a unique “reverse attorneys’ fees” provision that forces property owners to pay the government’s attorney’s fees even when they win. The government is entitled to 100 percent of its attorneys’ fees even when it wins just 1 percent of its case,¹¹ but a property owner is entitled to none of their attorneys’ fees even if they win 100 percent of their case.¹² Combining the low burdens on the government and property owners’ need to prove their own innocence with the potential liability for the government’s costs makes a number of innocent owners realize fighting back just is not worth it. And to make matters worse, government lawyers use the reverse attorneys’ fees provision to threaten and cajole property owners into not fighting back even when the property owners are willing to take the risk.¹³

Arizona Recently Rejected Efforts to Reform Forfeiture Laws

In January 2016, Rep. Bob Thorpe introduced H.B. 2369, which would have required a criminal conviction to forfeit property, but was quickly watered down to a very modest bill that would have only appointed a committee to study the state’s laws. Law enforcement successfully defeated the efforts of a bipartisan coalition including the Institute for Justice, ACLU of Arizona, Arizona Attorneys for Criminal Justice, Goldwater Institute, Los Abogados, National Federation of Independent Business, Public Integrity Alliance, and U.S. Justice Action Network, to get even this study committee.

In opposing reforms, Kathleen Mayer, a lobbyist with the Pima County Attorney’s Office, insisted, “We have no reported abuses in Arizona of this process in spite of what you might read about in the press.”¹⁴

But as this case illustrates, Arizona’s forfeiture laws are abusive.¹⁵ Indeed, Terry and Ria’s case is not the only one pending that challenges the constitutionality of Arizona’s outrageous forfeiture system. The ACLU also has active litigation—also arising out of an “uncontested forfeiture”—challenging portions of Arizona’s forfeiture scheme.¹⁶ Arizona takes in tens of millions of dollars per year through civil forfeiture, most of it involving the use of uncontested forfeiture.

Unlike Arizona, several states have successfully passed civil forfeiture reforms in the past two years. Nebraska and New Mexico abolished civil forfeiture completely. California, Minnesota, Montana, Nevada and New Hampshire now require a criminal conviction as a prerequisite to forfeiture. And many other states have passed a variety of reforms to protect innocent property owners, increase oversight and increase transparency through reporting.¹⁷

The Legal Challenge

This case makes four key constitutional arguments:

• “Uncontested forfeiture” violates the constitutional guarantee of due process by allowing prosecutors to usurp the role of judges and adjudicate proceedings in which they have a direct financial interest.

• The profit incentive conflict of interest renders the whole forfeiture scheme—more than just “uncontested forfeiture”—unconstitutional. As Terry and Ria’s case demonstrates, the incentive statutes motivate law enforcement to pursue and obtain forfeitures which have no basis in law. This deprives people like Terry and Ria of their property without due process of law in violation of the 14th Amendment to the U.S. Constitution and Article 2, section 4 of the Arizona Constitution.

• Arizona’s reverse attorneys’ fees provision violates the right to petition the government for redress under the First Amendment and Article 2, section 5 of the Arizona Constitution. The reverse attorneys’ fees provision makes it less likely that reasonable people will exercise their right to contest forfeiture in court, even if they are innocent. Laws that chill the exercise of constitutional rights—especially First Amendment rights—are unconstitutional.

• The reverse attorneys’ fees provision denies ordinary people the equal protection of the laws. Reverse attorneys’ fees amount to a privilege to the government that is denied to property owners: the right to ask for attorneys’ fees upon winning a forfeiture case. Such preferential treatment for the government—or, rather, disfavored treatment for those that would oppose the government in court—violates both the 14thAmendment to the U.S. Constitution and Article 2, section 13 of the Arizona Constitution.

The Litigation Team

This case is being litigated by IJ Attorneys Paul Avelar and Keith Diggs.

About the Institute for Justice

The Institute for Justice is the national law firm for liberty and the leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to end civil forfeiture. IJ has successfully challenged civil forfeiture in Oklahoma and federal use of civil forfeiture in Massachusetts, Michigan, Iowa, New York and North Carolina. For more information on IJ’s national initiative to end civil forfeiture, visit endforfeiture.com.

For more information, contact:
Shira Rawlinson
Assistant Director of Communications
(703) 682-9320
srawlinson@ij.org